Senate passes Franken amendment aimed at defense contractors

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WASHINGTON, D.C. — In one of the most public tests of his political skills since taking office in July, Sen. Al Franken pushed through an amendment Tuesday that would withhold defense contracts from companies like Halliburton if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.

The floor debate preceding the vote brought Minnesota’s junior senator, a Democrat, head-to-head with the top Republican on the Senate Judiciary Committee, Sen. Jeff Sessions of Alabama, who maintained that Franken’s amendment overreached into the private sector and suggested that it violated the due process clause of the U.S. Constitution. Sessions also pointed out that the Department of Defense opposed the amendment.

But Franken held his ground. First, he argued against Sessions’ constitutional argument.

“Article 1 Section 8 of our Constitution gives Congress the right to spend money for the welfare of our citizens. Because of this, Chief Justice Rehnquist wrote, ‘Congress may attach conditions on the receipt of federal funds and has repeatedly employed that power to further broad policy objectives,'” Franken said. “That is why Congress could pass laws cutting off highway funds to states that didn’t raise their drinking age to 21. That’s why this whole bill [the Defense Appropriations bill] is full of limitations on contractors — what bonuses they can give and what kind of health care they can offer. The spending power is a broad power and my amendment is well within it.”

Franken then described the case that prompted his amendment, that of former Halliburton employee Jamie Leigh Jones, who alleged in 2007 that she was raped by multiple co-workers while serving in Iraq in 2005.

Limited to arbitrationAlthough Jones sought to take Halliburton and its former subsidiary KBR to court, her employment agreement required her to pursue her claim through arbitration instead. Arbitration is a process in which a designated third-party (often chosen by the company) reviews the case and makes a judgment outside of the court system. Under binding arbitration agreements, there is usually no way, or very limited ways, to appeal the decision.

Halliburton and KBR have disputed Jones’ claims.

“The constitution gives everybody the right to due process of law,” Franken said. “And today, defense contractors are using fine print in their contracts do deny women like Jamie Leigh Jones their day in court… The victims of rape and discrimination deserve their day in court [and] Congress plainly has the constitutional power to make that happen.”

As the senators gathered to vote on his amendment, Franken worked the front of the room — shaking hands, patting backs and chitchatting with Democratic and Republican lawmakers.

MinnPost photo by Jay Weiner

Sen. Al Franken

In the end, his amendment to the Defense Appropriations bill passed easily, 68 to 30. Democratic Sens. Robert Byrd of West Virginia and Arlen Specter of Pennsylvania did not vote. The remaining Democrats voted in favor of Franken’s legislation. They were joined by 10 Republican senators, including all the female GOP senators. Minnesota’s Amy Klobuchar, a Democrat, co-sponsored the amendment and voted for it.

“We need to put assurances into the law that those kind of instances [the Jamie Leigh Jones case] are not capable of being repeated,” said Republican Sen. Lisa Murkowski of Alaska, who voted in favor of Franken’s amendment. “I want to make sure that a woman, any individual who is a victim of a terrible act, knows that they have got protections.”

Murkowski said that she considered the arguments that Sessions made about the amendment being too expansive before she decided to vote for the legislation.

“I looked at it,” said Murkowski. “And, I tell you, you look at some of the things we do and you have to say, ‘OK, you have a specific instance we’re trying to address and does this go above and beyond?’ But when you have to err on the side of protecting an individual, I erred on the side of greater generosity, I guess.”

Republican Sen. George LeMieux of Florida echoed some of Murkowski’s sentiments.

“I can’t see in any circumstance that a woman who was a victim of sexual assault shouldn’t have her right to go to court,” LeMieux said. “So, that is why I voted for it.”

Although Franken chatted up LeMieux on the Senate floor before the vote, LeMieux said that he had already made his decision. But, LeMieux added, Franken’s talk didn’t hurt.

“I had decided to vote for it before I came here, but I was happy to hear his argument for it,” LeMieux said. “He did what a senator should do, which was he was working it. He was working for his amendment.”

Bar fundingSpecifically, the amendment would bar federal funds from going to defense contractors that continue to apply mandatory arbitration clauses to claims of sexual assault, assault and battery, intentional infliction of emotional distress, and negligent hiring, retention and supervision. The amendment also covers civil rights claims of workplace discrimination, according to Franken’s office.

The amendment does not require contractors to change or modify existing employment contracts.

“This is such an important amendment such an important issue, and I wanted to talk about it,” said Franken, who appeared with Jones after the vote in one of his first impromptu press gatherings outside the Senate chamber.

Franken added that he chose to take a voice vote on the amendment so that it would be less likely to be taken out during conference when the Senate version of the Defense Appropriations bill is merged with the House version.

“It means the world to me,” Jones said of the amendment’s passage. “It means that every tear shed to go public and repeat my story over and over again to make a difference for other women was worth it.”

After the vote, however, Sessions reiterated that the amendment’s language was too broad and that arbitration was a useful way of resolving disputes.

Sessions pointed to the fact that an appeals court recently ruled that Jones’ lawsuit could go to court, in part because it is beyond the bounds of the contract agreement. (On Tuesday, however, Halliburton filed a petition for re-hearing to try to return the case to arbitration.)

“For overall justice in the American system, I think arbitration employment contracts is legitimate and we ought not to constrict it too much,” said Sessions.

Those in favor of the arbitration process argue that it is faster, more private, and usually less expensive than going to court.

“The Congress should not be involved in writing or rewriting private contracts,” Sessions said. “That’s just not how we should handle matters in the United States Senate, certainly not without a lot of thought and care and the support of, at least the opinion of, the Department of Defense.”

Sessions said that the Department of Defense opposed Franken’s amendment in part because it determined that enforcement would be problematic.

But Franken dismissed that argument, indicating that the disapproval of the Department of Defense did not necessitate abandoning the amendment.

“Sometimes you have to push bureaucracies to get change,” he said.

Cynthia Dizikes covers Minnesota’s congressional delegation and reports on issues and developments in Washington, D.C. She can be reached at cdizikes[at]minnpost[dot]com.

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Comments (12)

If arbitration clauses were truly voluntary, I’d have no problem condemning Franken’s amendment. But in many contexts, including this one, they are not. The relative power of the employer vs. the employee in this case is too great. In a sale of commercial goods, we might refer to it as an unconscionable (and therefore unenforceable)contract of adhesion. Franken’s amendment puts a spotlight on a significant problem, one which will require action on a much broader front at the state and federal level.

I wonder at what point Franken’s critics will realize they were wrong about him. In newspaper endorsements for Coleman all over the state, the editorial writers said Franken was too partisan. Since taking office, all he’s done is prove them all wrong. Franken has worked like an expert legislator, despite the fact he has the lowest seniority. He has worked with former Republican Dave Durenberger on student loans, worked for veterans and now this. I hope the editorial writers who cluelessly accused him of partisanship are taking notes. Franken is a textbook example of what everyone wants from their senator – someone who works on basic issues across party lines. Yes, you can disagree with his issues, but you would be wise not to run against him based on his issues so far.

Next, perhaps, a bill barring from any further federal contracts firms that fail to deliver what they are being paid for, that do shoddy work (showers that electrocute servicemebers), and whose employees murder civilians in the countries in which they work.

If any organizations need tight governmental oversight, it is modern mega-corporations with the enormous power that money-based lobbying brings them.

Are you saying you have data that informs you that Senator* Franken does intend to return to writing funny, funny rape skits for SNL, or does the data show that he would never throw his former employers at Air America under the bus by authoring legislation that puts a cramp on their funding?

Al, you are out-performing even my high expectations of you. Thank heavens a slim majority of Minnesotans were wise enough to see your value, in spite of the efforts of the not-so-Swifties of this world.

What I find ironic about this whole issue is this: Republicans have been clamoring for more bi-partisan legislation. They say that health care should really be so bi-partisan that it should pass with 80 votes. And here Franken gives them a layup. Support a bill to stop rape and other crimes and to give those people some rights. You know, the rights the right wing has been saying they are losing. Yet, here is a mom and apple pie piece of legislation that only a complete nutcase or dirtbag would oppose. And, yep, three-quarters of the Republicans in the United States Senate — a body that has sworn to uphold the constitution of the United States – opposed it. Apparently, rights only should belong to those people who agree with them. And to Senators such as Jeff Sessions, those rights must include the right to drug someone and gang rape that person.

Senator Sessions:
In which of the following cases is it “legitimate [to] apply mandatory arbitration”? Clauses to claims of sexual assault, assault and battery, intentional infliction of emotional distress, and negligent hiring, retention and supervision, or civil rights claims of workplace discrimination…? “For overall justice in the American system” (no justice for an individual American worker, but just swell for the corporation) and your opposing “Franken’s amendment (even) in part because it [the Department of Defense] determined that enforcement would be problematic” are so incredibly insulting that you ought to be ashamed of yourself.

Senator Franken:
Sorry, I just had to get that off my chest. What I meant to really say is thank you… as Herb Davis eloquently stated and it bears repeating: “It is so great to have Sen. Franken demonstrate why so many of us believed in him.”

The enforcement of arbitration provisions in employment contracts – particularly where they are meant to bar an employee from filing lawsuits alleging unlawful discrimination – remains controversial, even among arbitrators.

Traditional arbitration grew out of a need to resolve disputes that arose under collective bargaining agreements. It is well settled since the early 1960s that arbitration of contract disputes is both legitimate and necessary to ensure that courts are not clogged with thousands of additional cases and that they are heard by arbitrators mutually selected by the parties to the agreement and who have a clear understanding of the industry in which they decide cases.

Sen. Franken’s amendment appears to deal with one specific issue – the requirement that an employee waive rights to adjudicate statutory discrimination claims as a condition of employment, even before there is any controversy. Many arbitrators will refuse to hear cases that arise under those types of provisions, particularly where the arbitrator is not jointly selected.

It is becoming increasingly popular for unions and employers to include employment discrimination claims within the ambit of their arbitration clauses. The best ones make it optional and only in cases where a clear waiver is executed by the employee at the time of the controversy. There are many arbitrators who are very competent to handle employment discrimination cases, both from a substantive and procedural perspective. The question in those cases is the extent to which due process protections available in court are available in arbitration and whether the remedial relief available in court is available in arbitration (attorney’s fees, etc.). The supposed “advantage” in arbitration is its reputation for speed and lower cost. That might be an illusion in employment discrimination cases, particularly where discovery, motion practice and strict adherence to evidentiary rules are imposed.

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